John Richard Housel pleaded guilty to distributing and attempting to
distribute a total of about one and a half pounds of marijuana. (Doc. 44 (plea
agreement); Doc. 1 (indictment).) On appeal, Housel asserts that the Presentence
Investigation Report (PSR) incorrectly calculated that he was responsible for the
equivalent of more than 10,431 kilograms of marijuana. Housel's counsel below
initially filed several objections to the PSR but withdrew them at sentencing,
asserting that they would not affect Housel's sentence. (Doc. 61 (sentencing
transcript), at 2-3.) The district court adopted the PSR's findings and application
of the guidelines, and sentenced Housel to ten years' imprisonment. (PSR ¶ 84;
Doc. 56 (judgment), at 2,7.)

Because he did not raise his argument below, Housel has waived review of
all but plain error. United States v. Dwyer, 245 F.3d 1168, 1170 (10th Cir.
2001). To reverse, we must find (1) error that is (2) plain, (3) affects the
defendant's substantial rights, and (4) "seriously affects the fairness, integrity or
public reputation of judicial proceedings." Johnson v. United States, 520 U.S.
461, 467 (1997) (alteration omitted). Factual disputes not raised below do not
amount to plain error. United States v. Svacina, 137 F.3d 1179, 1187 (10th Cir.
1998). We therefore accept the factual findings of the PSR and review only
whether the PSR's application of the guidelines to these facts was plain error.

The PSR determined that Housel's related conduct included attempting to
manufacture methamphetamine. (PSR ¶¶ 21-22, 106.) An informant had
reported that Housel was setting up a methamphetamine lab and needed to locate
red phosphorus, iodine crystals, and ephedrine tablets. (PSR ¶ 6.) Housel told an
undercover officer that he had the needed cookware and was merely waiting for
the precursor chemicals. (PSR ¶ 8.) After some negotiations, Housel purchased
phosphorus, iodine, and pseudoephedrine from the officer. (PSR ¶¶ 8, 12, 14.)
Laboratory analysis indicated that from the quantity of phosphorus, Housel could
have produced 1043 grams of methamphetamine.(1) (PSR ¶ 14.) Using the table in
§ 2D1.1 of the Sentencing Guidelines, the PSR converted the methamphetamine
to 10,430 kilograms of marijuana and added it to the 1.13 kilograms of marijuana
the transactions underlying the charged offenses. (PSR ¶ 23.)

Housel argues that this related conduct should have been treated as
possession of a listed chemical, for which sentences are ordinarily calculated
under § 2D1.11. Pseudoephedrine and iodine are both listed chemicals. See 21
U.S.C. § 802(34), (35). The PSR, however, treated Housel's conduct as
amounting to an attempt to manufacture methamphetamine, a controlled
substance, and the sentence for this offense is governed by § 2D1.1.(2) We decline
to disturb the PSR's factual determination or to hold that application of § 2D1.1
was plain error in this case.

The cases that Housel relies on most heavily are readily distinguishable
because they did not involve attempts to manufacture methamphetamine. In
United States v. Hoster, 988 F.2d 1374, 1382 (5th Cir. 1993), the court found
that it was plain error to aggregate the quantities of a controlled substance
(amphetamine) and a listed chemical (phenylacetic acid) by treating phenylacetic
acid as equivalent to phenylacetone, which is listed in the conversion tables
under § 2D1.1. The court noted that "there is nothing in the Guidelines by which
one could infer a relationship between phenylacetic acid and phenylacetone." Id.
at 1382 n.21. Similarly, in United States v. Wagner, 994 F.2d 1467, 1472 (10th
Cir. 1993), we found that it was plain error to convert P2P ­ a controlled
substance that is a precursor chemical to methamphetamine ­ into
methamphetamine and then convert that into marijuana to aggregate quantities
under § 2D1.1. We held instead that the P2P should have been converted
directly
to marijuana in accordance with the Guidelines' table. Id. In this case, however,
Housel's offense was attempting to manufacture methamphetamine, so the
quantity of methamphetamine that he was capable of making was relevant. SeeUnited States v. Griggs, 71 F.3d 276, 280 (8th Cir. 1995).

Housel's brief seems to suggest that his counsel below erred in failing to
preserve proper objections to the PSR. (Opening Br. at 5.) He has not directly
raised a claim of ineffective assistance of counsel, and we rarely consider the
issue on direct appeal. SeeUnited States v. Galloway, 56 F.3d 1239,
1240-41
(10th Cir. 1995) (en banc). If Housel wishes to pursue this argument, he must do
so in a collateral proceeding under 28 U.S.C. § 2255.

We AFFIRM Housel's sentence.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge

FOOTNOTESClick footnote number to return to corresponding location in the text.

*.After examining appellant's brief and the
appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
Order and Judgment is not binding precedent, except under the doctrines of law
of the case, res judicata, and collateral estoppel. The court generally disfavors
the citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.

2.Even when the underlying offense is
possession of a listed chemical, the
Sentencing Guidelines state that § 2D1.1 should be applied if the defendant's
actions constitute an attempt to manufacture a controlled substance and if that
section results in a higher offense level. § 2D1.11(c) & Application Note
2.